I'm all about free speech, but I don't think a few time-and-place restrictions covering schools and funerals are burdensome to the idea. Do we really want schools to be battlegrounds in the culture wars, with skirmishes fought with T-shirts?

As I've argued before, promoting tolerance and respect -- live and let live -- is not the logical and neutral opposite of promoting intolerance and disrespect.

I'm not a Christian, but I sure as hell don't want students wearing anti-Christian T-shirts to public schools. I find it inappropriate and divisive, potentially hurtful and disruptive in a way that straightforward, pro-Christian T-shirts are not.

What kind of young person would wear a shirt designed to hurt, belitle and minimize other students? What kind of parent would allow their child to wear such a shirt?

We already know what kind of person Fred Phelps is.

United States Court of Appeals,Seventh Circuit.Heidi ZAMECNIK and Alexander Nuxoll, Plaintiffs-Appellees,v.INDIAN PRAIRIE SCHOOL DISTRICT # 204, et al., Defendants-Appellants.

Nos. 10-2485, 10-3635.Argued Jan. 19, 2011.Decided March 1, 2011.

Appeals from the United States District Court for the Northern District of Elinois, Eastern Division. No. 07 C 1586-William T. Hart, Judge.Nathan W. Kellum, Alliance Defense Fund, Mem-phis, TN, for Plaintiffs-Appellees.

POSNER, Circuit Judge.*1 These consolidated appeals (functionally one appeal, and we'll treat them as such) are a sequel to an appeal we decided almost three years ago, Nuxoll v. Indian Prairie School Dist. # 204, 523 F.3d 668 (7th Cir.2008). The plaintiffs, two students at Neuqua Valley High School, a large public high school in Naperville, Illinois, had sued the school district (and school officials, whom we can ignore-we'll call the defendants, collectively, “the school”) for infringing their right of free speech by forbidding them to make a specific negative statement about homosexuality. They moved for a preliminary injunction, which the district judge denied. They appealed, and we re-versed, directing the district judge to enter forthwith a preliminary injunction that would permit plaintiff Nuxoll (Zamecnik having graduated) to wear during school hours a T-shirt that recites “Be Happy, Not Gay.” Nuxoll's right to wear it outside of school is not questioned.

A private group called the Gay, Lesbian, and Straight Education Network promotes an annual event called the Day of Silence that is intended to draw critical attention to harassment of homosexuals; the idea behind the name is that homosexuals are silenced by harassment and other discrimination. Students participate in the Day of Silence by remaining silent throughout the day except when called upon in class, though some teachers, as part of their own observance of the Day of Silence, will not call on students that day. Some students and faculty wear T-shirts on the Day of Silence that display slogans such as “Be Who You Are.”

None of the slogans criticizes heterosexuality or advocates homosexuality, though “Be Who You Are” carries the suggestion that persons who are homosexual should not be ashamed of the fact or try to change it.

The plaintiffs, who disapprove of homosexuality on religious grounds, participated (we use the past tense because both have now graduated) with other like-minded students in a Day of Truth held on the first school day after the Day of Silence. Plaintiff Zamecnik wore a shirt that read “My Day of Silence, Straight Alliance” on the front and “Be Happy, Not Gay” on the back. A school official inked out the phrase “Not Gay” and has banned display of the slogan as a violation of a school rule forbidding “de-ogatory comments,” spoken or written, “that refer to race, ethnicity, religion, gender, sexual orientation, or disability” (emphasis added). He did not object to the slogan on the front of the shirt.

The plaintiffs assert a constitutional right to make negative statements about members of any group provided the statements are not inflammatory-that is, are not “fighting words,” which means speech likely to provoke a violent response amounting to a breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73 (1942). They concede that they could not inscribe “homosexuals go to Hell” on their T-shirts because those are fighting words, at least in a high-school setting, and so could be prohibited despite the fact that they are speech, disseminating an opinion. R.A.V. v. City of St Paul, 505 U.S. 377, 386 (1992).

*2 When last this case was here, we expressed (and we repeat our expression of) sympathy (thought excessive by Judge Rovner in her concurring opinion, 523 F.3d at 676-80) for an expansive interpretation of the “fighting words” doctrine when the speech in question is that of students. We noted that the contri-bution that kids can make to the marketplace of ideas and opinions is modest (Judge Rovner disagreed) and we emphasized (overemphasized, in her view) a school's countervailing interest in protecting its stu-dents from offensive speech by their classmates that would interfere with the learning process-though we added that because 18-year-olds can now vote, high-school students should not be “raised in an intellec-tual bubble,” American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572, 577 (7th Cir.2001), which would be the tendency of forbidding all discussion of public issues by such students during school hours. (Hence the younger the children, the more latitude the school authorities have in limiting expression. Muller ex rel. Muller v. Jefferson Lighthouse School, 98 F.3d 1530, 1538-39 (7th Cir.1996).)

Thus a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality. The school argued (and still argues) that banning “Be Happy, Not Gay” was just a matter of protecting the “rights” of the students against whom derogatory comments are directed. But people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life. R.A.V. v. City of St. Paul, supra, 505 U.S. at 394; Boos v. Barry, 485 U.S. 312, 321 (1988). Although tolerance of homosexuality has grown, gay marriage remains highly controversial. Today's high school students may soon find themselves, as voters, asked to vote on whether to approve gay marriage, or to vote for candidates who approve of it, or ones who disapprove.

In asking for a preliminary injunction Nuxoll acknowledged that “Be Happy, Not Gay” was one of the “negative comments” about homosexuality that he thought himself entitled to make. But we said that unlike “homosexuals go to Hell,” which he concedes are “fighting words” in the context of a school (and unlike “I will not accept what God has condemned” and “homo-sexuality is shameful”-terms held, perhaps questionably unless euphemism is to be the only permitted mode of expressing a controversial opinion-to be fighting words in Harper v. Poway Unified School District, 445 F.3d 1166, 1171 (9th Cir.2006), vacated as moot, 549 U.S. 1262 (2007)), “Be Happy, Not Gay” is not an instance of fighting words. To justify prohibiting their display the school would have to present “facts which might reasonably lead school officials to forecast substantial disruption.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969); see Boucher v. School Board of School District of Greenfield, 134 F.3d 821, 827-28 (7th Cir.1998); Walker-Serrano ex rel. Walker v. Leonard, supra, 325 F.3d 412, 416 (3d Cir.2003); LaVine v. Blaine School District, 257 F.3d 981, 989 (9th Cir.2001). Such facts might include a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school but the school had presented no such facts in response to the motion for a preliminary injunction.

*3 In this factual vacuum, we described “Be Happy, Not Gay” as “only tepidly negative,” saying that “derogatory” or “demeaning” seemed too strong a characterization. 523 F.3d at 676. As one would expect in a high school of more than 4,000 students, there had been incidents of harassment of homosex-ual students. But we thought it speculative that allow-ing the plaintiff to wear a T-shirt that said “Be Happy, Not Gay” “would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student's free speech.” Id.

Not that Tinker's “substantial disruption” test has proved a model of clarity in its application. The cases have tended to rely on judicial intuition rather than on data, and the intuitions are sometimes out of date. For example, although it's been ruled that “lewd, vulgar, obscene, or plainly offensive speech” can be banned from a school, Canady v. Bossier Parish School Bd., 240 F .3d 437, 442 (5th Cir.2001), the authority for the ruling- Bethel School District No. 403 v. Fraser, 478 U.S. 675, 680-82 (1986)-involved student speech that, from the perspective enabled by 25 years of ero-sion of refinement in the use of language, seems distinctly lacking in shock value (e.g., “I know a man who is firm-he's firm in his pants, he's firm in his shirt, his character is firm-but most ... of all, his belief in you, the students of Bethel, is firm,” id. at 687 (concurring opinion)). An example of school censorship that courts have authorized on firmer grounds is forbidding display of the Confederate flag, as in Defoe ex rel. Defoe v. Spiva, 625 F.3d 324, 333-36 and n.6 (6th Cir.2010); Scott v. School Board of Alachua County, 324 F.3d 1246, 1248-49 (11th Cir.2003) (per curiam), and West v. Derby Unified School District No. 260, 206 F.3d 1358, 1361, 1365-66 (10th Cir, 2000)-cases in which serious racial tension had led to outbursts of violence even before the display of the flag, which is widely regarded as racist and incendiary. Boroff v. Van Wert City Board of Education, 220 F.3d 465, 467, 469-71 (6th Cir.2000), involved T-shirts that depicted a three-faced Jesus, accompanied by the words “See No Truth. Hear No Truth. Speak No Truth” and advocated, albeit obliquely, the use of illegal drugs, a form of advocacy in the school setting that can be prohibited without evidence of disruption. Morse v. Frederick, 551 U.S. 393, 406-10 (2007).

These cases, more extreme than ours, do not establish a generalized “hurt feelings” defense to a high school's violation of the First Amendment rights of its students. “A particular form of harassment or intimidation can be regulated ... only if ... the speech at issue gives rise to a well-founded fear of disruption or interference with the rights of others.” Sypniewski v. Warren Hills Regional Bd. of Education, 307 F.3d 243, 264-65 (3d Cir.2002). The same court, in Saxe v. State College Area School District, 240 F.3d 200, 209 (3d Cir.2001), found “little basis for the District Court's sweeping assertion that ‘harassment’--at least when it consists of speech targeted solely on the basis of its expressive content--‘has never been considered to be protected activity under the First Amendment.’

Such a categorical rule is without precedent in the decisions of the Supreme Court or this Court, and it belies the very real tension between anti-harassment laws and the Constitution's guarantee of freedom of speech.” Severe harassment, however, blends insen-sibly into bullying, intimidation, and provocation, which can cause serious disruption of the decorum and peaceable atmosphere of an institution dedicated to the education of youth. School authorities are entitled to exercise discretion in determining when student speech crosses the line between hurt feelings and substantial disruption of the educational mission, because they have the relevant knowledge of and responsibility for the consequences.

*4 As Judge Rovner explained in her concurring opinion in the previous appeal, “the statement [‘Be Happy, Not Gay’] is clearly intended to derogate ho-mosexuals. Teenagers today often use the word ‘gay’ as a generic term of disparagement. They might say, ‘That sweater is so gay’ as a way of insulting the look of the garment. In this way, Nuxoll's statement is really a double-play on words because ‘gay’ formerly meant ‘happy’ in common usage, and now ‘gay,’ in addition to meaning ‘homosexual’ is also often used as a general insult.

Nuxoll's statement easily fits the school's definition of ‘disparaging’ and would meet that standard for most listeners.... [T]here is no doubt that the slogan is disparaging.... [But] it is not the kind of speech that would materially and substantially interfere with school activities. I suspect that similar uses of the word ‘gay’ abound in the halls of [Neuqua Valley High School] and virtually every other high school in the United States without causing any substantial interruption to the educational process.” 523 F.3d at 679. Judge Rovner warned that the fact that schools “are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source.... The First Amendment ... is consistent with the school's mission to teach by encouraging debate on controversial topics while also allowing the school to limit the debate when it becomes substantially disruptive. Nuxoll's slogan-adorned t-shirt comes nowhere near that stan-dard.” Id. at 679-80.

The preliminary injunction issued on remand permitted Nuxoll to wear during school hours a T-shirt that recites “Be Happy, Not Gay.” Pretrial discovery ensued. Eventually the district judge granted summary judgment in favor of the plaintiffs, awarded each of them $25 in damages for the infringement of their constitutional rights, and later entered a permanent injunction, which differs from the preliminary one in running in favor of any student and in not being limited to the display of the slogan on a T-shirt; for “T-shirt” the permanent injunction substitutes “clothing or personal items.”

The judge had granted summary judgment against the school district on April 29, 2010, after classes had ended but before final exams. By the time he entered the permanent injunction, on May 20, Nuxoll was about to graduate. (Zamecnik was long gone.) All that remained for graduating seniors to do was to participate in a few ceremonial events culminating in the graduation ceremony on May 23. The school argues that injunctive relief was moot on May 20 because Nuxoll had no occasion to wear his “Be Happy, Not Gay” T-shirt at the ceremonial events, and did not. But remember that the injunction had been broadened to permit the display of the slogan on other clothing as well, and so he could by virtue of the injunction have displayed it on his graduation gown had he wanted to.

*5 The school points out that the graduation wasn't held on school grounds and that the injunction doesn't apply to the display of the slogan elsewhere; that's because the school has never asserted a right to control speech off school property. But it would very much like to control it at the graduation ceremony, and so treats the venue of the ceremony as temporary school grounds, as by imposing a dress code on the graduating students and enforcing its school rules against drunkenness and other disruptive behavior-and it regards the display of the slogan “Be Happy, Not Gay” as disruptive.

The claim of mootness evaporates completely when one notes that the permanent injunction runs in favor of any student at the high school, not just Nuxoll; it is not unlikely that one or more of its 4,000-plus students may someday want to display the slogan. Injunctions often run in favor of unnamed members of a group, and this is proper as long as the group is specified. Rule 65(d)(1)(C) of the Federal Rules of Civil Procedure requires that an injunction “describe in reasonable detail ... the act or acts restrained or required,” but the rule does not require that the injunction name the parties who may enforce the injunction. See, e.g., Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248 (7th Cir.1985). “When the court believes the underlying right to be highly significant, it may write injunctive relief as broad as the right itself.” 1 Dan B. Dobbs, Law of Remedies § 2.4(6), p. 113 (2d ed.1993). And Rule 71 authorizes nonparties to seek enforcement of an in-unction that “grants relief for a nonparty or may be enforced against a nonparty.”

The school's main argument is that the district judge entered summary judgment prematurely. He did if the school presented enough evidence to warrant an evidentiary hearing to determine whether the school had had a reasonable belief that it faced a threat of substantial disruption. To carry its burden it presented three types of evidence: incidents of harassment of homosexual students; incidents of harassment of plaintiff Zamecnik; and the report of an expert which concluded that the slogan “Be Happy, Not Gay” was “particularly insidious.”

The first type of evidence was negligible: a handful of incidents years before the T-shirt was first worn, in a school with thousands of students. The evidence consists, moreover, of just the affidavit and deposition of a single school district official, which merely repeats statements by other, unidentified school officials repeating statements by unidentified students. The deponent described but could not confirm the details of the incidents and admitted that because the allegations of harassment had not been confirmed, no students had been disciplined.

The second type of evidence was barred by the doctrine, unmentioned by the school, of the “heckler's veto.” Brown v. Louisiana, 383 U.S. 131, 133 n.1 (1966); Tinker v. Des Moines Independent Commu-nity School District, supra, 393 U.S. at 508-09; Terminiello v. City of Chicago, 337 U.S. 1, 4-5 (1949); Hedges v. Wauconda Community Unit School Dist. No. 118, 9 F.3d 1295, 1299-1300 (7th Cir.1993). Statements that while not fighting words are met by violence or threats or other unprivileged retaliatory conduct by persons offended by them cannot lawfully be suppressed because of that conduct. Otherwise free speech could be stifled by the speaker's opponents' mounting a riot, even though, because the speech had contained no fighting words, no reasonable person would have been moved to a riotous response. So the fact that homosexual students and their sympathizers harassed Zamecnik because of their disapproval of her message is not a permissible ground for banning it.

*6 Two of the cases that endorse the doctrine of the heckler's veto, Tinker and Hedges, are school cases, but Tinker is also the source of the substantial disruption test of permissible school censorship. See 393 U.S. at 509. A city can protect an unpopular speaker from the violence of an angry audience by deploying police, but that is hardly an apt response to students enraged by a T-shirt. A school has legitimate responsibilities, albeit paternalistic in character, toward the immature captive audience that consists of its students, including the responsibility of protecting them from being seriously distracted from their stud-es by offensive speech during school hours.

But the anger engendered by Zamecnik's wearing a T-shirt that said “Be Happy, Not Gay” did not give rise to substantial disruption. It was not her wearing the shirt, but her filing this lawsuit, that engendered the creation of a Facebook group entitled “Be Happy! Not Heidi” [Zamecnik's first name] in which hundreds of comments were posted, many hostile to her. But only one was a threat (“someone tells me where she lives, i will f--- up her house, car, and whatever else i can find”), and it provoked a sensible comment from another student: “you sound [when making threats] just as stupid as she does.” Many of the comments addressed substantial issues involving First Amendment claims, school policies, treatment of homosexual students, and the role of the media in the dispute; and apart from the obsessive use of expletives-a defining feature of modern American culture, by no means limited to teenagers-the discussion of the issues was substantive, and even, to a degree, thoughtful. Here are typical comments: “The social studies teachers are going to be having a department meeting right after Spring Break in order to be able to discuss this whole law suit in an educational way, to bring up some really meaningful discussion. More than anything, this case boils down to an issue of constitutional rights. And frankly, school rules override the constitutional rights of minors in the public school system. The school has the right to search and seizure at any time, despite constitutional law. Similarly, ‘free speech’ doesn't apply in public schools, because school rules are more specific”; “I'm very glad that so many people are banding together against discrimination, just please go about it in a classy and mature way; just like Ana said on the message board, don't stoop to her [Zamecnik's] level”; “Heidi isn't suing because she hates gays, she's suing because she was harassed for being active in what she believes in. I also think that if you were put in her situation, you'd fight tooth and nail to get whatever f---ing point it is you are trying to get across. With every good, there is the bad. You have to take it in stride, not make up some stupid community making fun of someone. Heidi is actually a really nice person who is just mis-guided by religion and a closed mind.”

*7 Zamecnik's parents asked the school to allow a bodyguard to accompany her to class on the 2007 Day of Silence. Her mother said she was worried by the “threats that these particular students had made against Heidi expressing her view.” The school did not allow the bodyguard but did have a female staff member escort Zamecnik from class to class on that day. She decided not to wear her “Be Happy, Not Gay” shirt. There were no serious incidents, though it is possible that a water bottle that was thrown and struck one of her friends had been aimed at her.

That leaves for consideration the expert's report. Stephen T. Russell has a Ph.D. in sociology and is a professor of family and consumer sciences at the University of Arizona. His 38-page report, 29 pages of which are devoted to his impressive curriculum vitae, establishes that he's qualified to give expert testimony on matters relating to the attitudes and behavior of teenagers, with special reference to teenagers who belong to minorities, including sexual minorities-including therefore homosexual high-school students. Yet the “analysis and opinions” section of his report, minus its bibliographical references, is less than two and a half pages long and can satisfy none of the requirements for admissible expert testimony that are set forth in Rule 702 of the Federal Rules of Evidence: “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reli-able principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”

All that the report says, in seven numbered paragraphs, is that: (1) harassment, particularly verbal, of homosexual students is common in schools; (2) schools should therefore have anti-harassment policies; (3) harassed students “are at risk for negative educational and health outcomes”; (4) “homophobic slurs and derogatory remarks” create a risk of “disruptive behavior including student victimization and violence”; (5) school districts can lose state funding “when students miss school because of feeling unsafe due to anti-gay bullying”; (6) the Day of Silence does not “promote homosexual conduct” or “promote the idea that homosexual conduct should be endorsed by society”; (7) “the phrase ‘be happy, not gay’ is not ‘tepid’ in a public school setting” and indeed “is particularly insidious because it references a long-standing stereotype that gay people are unhappy, yet appears to be a simple play on words.” Points 1 through 6 are plausible inferences from the research that Dr. Russell has either conducted or cites in his report, or so at least we'll assume, though he does not discuss any of that research-just lists citations.

Point 7, however, which is the punchline, comes out of nowhere. There is nothing in the report to indi-cate that Russell knows anything about Neuqua Valley High School, for there is no reference to the school in the report. No example is given of “particularly insidious” statements about homosexuals. No example is given of a “homophobic slur” or “derogatory remark” about them that has ever been uttered in any school, or elsewhere for that matter. Though the report calls “be happy, not gay” particularly insidious, it does not indicate what effects it would be likely to have on homosexual students. It gives no indication of what kind of data or study or model Russell uses or other researchers use to base a prediction of harm to homosexual students on particular “negative comments.” No methodology is described. No similar research is described.

*8 In the idiom of Rule 702, the expert's report contains no indication of the “facts or data” relied on, no indication that testimony based on the report would be “the product of reliable principles and methods,” and no indication that in formulating his opinion the expert “applied the principles and methods reliably to the facts of the case.” Dr. Russell is an expert, but fails to indicate, however sketchily, how he used his expertise to generate his conclusion. Mere conclusions, without a “hint of an inferential process,” are useless to the court. Mid-State Fertilizer Co. v. Exchange National Bank, 877 F.2d 1333,1339-40 (7th Cir.1989); see also General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997); Clark v. Takata Corp., 192 F.3d 750, 758-59 (7th Cir.1999); Wittmer v. Peters, 87 F.3d 916, 920 (7th Cir.1996); Southern Grouts & Mortars, Inc. v. 3M Co., 575 F.3d 1235, 1245 (11th Cir.2009) (per curiam). Russell's is as thin an expert-witness report as we've seen.

One issue remains: the school challenges the award of damages to the plaintiffs, despite the modesty of the award. The award was justified. Both plaintiffs were injured, though only slightly (but $25 does not exaggerate the harm), by the school's violation of their constitutional rights. Zamecnik's shirt was defaced and Nuxoll's desire to wear the T-shirt on multiple occasions in 2007 was thwarted by fear of punishment.

The district judge was right to grant summary judgment in favor of the plaintiffs, and the relief ordered is justified by the record.

Comments

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Another way to look at it is a great week for free speech, I even if you do not like the content of the speech. Not sure I completely agree with the Supreme Court's ruling, but banning the disgusting speech of Phelps would raise tricky questions of where to draw the line between permitted and prohibited speech. Best to err on the side of permitting speech.

Double shot for the haters. I just don't understand the t-shirt ruling.

"A school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality," the U.S. Court of Appeals for the 7th Circuit said in an opinion released Tuesday...People in our society do not have a legal right to prevent criticism of their beliefs or their way of life," the court said"

So, a school that promotes Black History month should allow KKK members to attend in full dress robes??

And let's understand the context in which this case arose. It was a civil suit, filed by the father of the deceased soldier, for intentional infliction of emotional distress (interesting because, according to the opinion, he didn't even know what was on the signs until he watched the evening news!), intrusion upon seclusion, and civil conspiracy.

The case did NOT involve "time, place and manner" restrictions. Indeed, Maryland had no such restrictions in place at the time.

There was no dispute that the Phelpses picketing, which was on public land, was peaceful and that it did not disrupt the funeral.

To quote from the opinion:

". . . the church members had the right to be where they were. Westboro alerted local authorities to its funeral protest and fully complied with police guidance onwhere the picketing could be staged. The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence.

"The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself." (Slip opinion, p. 11)

I agree with the Court here:

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case." (slip opinion, p. 15)

I think the Supreme Court decision was correct, in the legal sense. We have time and place restrictions (yelling "FIRE!" in a crowded theater) to protect people's immediate safety, not their emotional well-being or sensibilities (yelling profanities in a crowded theater).

The surprising part was Alito dissenting. Of the few quotes I've seen, he doesn't seem to have any legal foundation to his opinion. Maybe others have read some.

"I don't think a few time-and-place restrictions covering schools and funerals are burdensome to the idea."

As I pointed out above, the Phelps case didn't involve that question.

Time-and-place restrictions have been upheld, but they must be content neutral. In other words, you can't say a pro-whatever-issue group can picket, but an anti-whatever-issue group can't. The time-and-place restrictions must be applied to both.

EZ said:
"As I've argued before, promoting tolerance and respect -- live and let live -- is not the logical and neutral opposite of promoting intolerance and disrespect."

I don't recall the details, but I think the t-shirt in question was in response to someone wearing a "pro-gay" t-shirt, not a "pro-tolerance" t-shirt. Similarly, a "black power" t-shirt may stir up certain feelings that a "let all races live in harmony" t-shirt would not.

I agree that the schools may not be the proper venue for such displays, but I don't view what happened as an unprovoked attack.

It's tough to rule against the church haters without causing possible chilling implications, but I'm curious about the school one. The school did perhaps invite dissent with the advocacy of its event, but I've been under the impression that kids don't have full first amendment rights in school.

Although I don't like it, I agree the Supreme Ct decided correctly in the Westboro case. The scum of the earth have a right to spew their hate, as long as they follow local law regarding picketing.

Alito's comment seems rather strange to me. Snyder was "not a public figure," yet he was subjected to "a malevolent personal attack". Well, doesn't the same thing happen to pregnant women entering abortion clinics?

I agree with the other commenters, including jlp, who note that the Phelps case didn't turn on "time, place and manner" restrictions, and the decision appears to be the correct one.

Also, quotidian is quite right that the free speech rights of students are limited but I suppose the rationale is that you allow one political message and you have to allow them all. This decision provides a good argument for a business casual dress code or school uniforms or, at least, not allowing T-shirts, etc. with slogans or T-shirts at all.

We have to follow the Constitution even when we don't find the outcome appealing to us or socially desirable overall.

I was actually kind of relieved by the Phelps ruling. There's no question that the Westboro crowd are a bunch of raving bigoted lunatics, but I've been worried that the obvious awfulness of them and of their message would bias the court into reducing what are really pretty clear First Amendment protections.

While I agree with the ruling, there will be consequences.
Now that there are no possible legal impediments to stop them, a Phelps protest will result in violence & some of the Phelps' are going to be the victims.
I'm not advocating it, just predicting it.

I do not believe gay rights is a political message. Any more than women's rights and African American rights are political, would any have a problem with t-shirts promoting these? We're talking about equality, and any message deriding these rights should not be tolerated. The promotion of the tolerance of bigotry by our courts is wrong, especially in a school setting.

My comparison of Alito's remark to women entering abortion clinics was right on point, no loss here. BTW - thanks for your kind comment on the other thread, Mike.

I suppose it depends on what you mean by "gay rights" or "women's rights" or "African American rights." Some people may consider causes such as gay marriage, abortion, and affirmative action to involve "rights," and such issues are definitely political in nature.

Regardless, schools shouldn't be in the business of having to figure out the grey areas when it comes to protecting speech. Let's ban the t-shirts and focus on the academics.

@Wendy C: We're talking about equality, and any message deriding these rights should not be tolerated. The promotion of the tolerance of bigotry by our courts is wrong,.......". Tthe court isn't promoting anything . It is ruling on the First amendment. As ugly as these incidents are, they are permissable. And it is the right to do so that must be tolerated not the message.

We would have to ban t-shirts alogether, which would not be a good idea. Students wear t-shirts symbolizing many things, including religion, race, music, sports, even certain designs and colors that denote gang affiliation. The gang stuff we can stop, as well as shirts depicting drug use and profanity/offensive sexual content. But, we should never allow shirts that run down another segment of the student body. Would shirts that say I'm smart, not retarded, be acceptable?

@Richard

The Constitution does not apply to minor children in respect to protected rights in the school environment, except in isolated cases of physical search and seizure rules. The court overstepped here.

We protect the "scum of the earth" to hurt the family of our war dead on the grounds of "free speech", but we deny that a Nativity scene has anything to do with Christmas because we rule it cannot appear on public property at Christmastime! We are one screwed up country--and it comes from the top down--from the top down from all the branches of our government.

@Wendy.... That is not correct in this case .Here is the key section on the Seventh circuit cour'ts ruling: "that Tinker v. Des Moines Independent Community School District authorizes the restriction of speech when there’s a substantial likelihood of a substantial disruption, it concludes that on these facts the likelihood wasn’t demonstrated." So yes there are restrictions on student rights when they are minors but that does not trump them completely.

"So, a school that promotes Black History month should allow KKK members to attend in full dress robes??"

No but then it is going to have to promote Hispanic History, Women's History, Muslim History, Gay History, etc, etc. Of course, there is nothing POLITICAL about that. Not political at all. No siree Bob.

"School administrators work diligently to make sure the school environment feels safe so all students can focus on learning," she said in a statement. "As educators, we believe derogatory speech is a distraction that can prevent students from achieving their best."

"that Tinker v. Des Moines Independent Community School District authorizes the restriction of speech when there’s a substantial likelihood of a substantial disruption, it concludes that on these facts the likelihood wasn’t demonstrated."

So, we wait until after gay students are beat up or commit suicide in significant numbers before we consider this?

"What kind of young person would wear a shirt designed to hurt, belitle and minimize other students?"

Wonder no more, EZ. As a high-schooler I was a self-righteous and self-assured little bigot who knew exactly who God favored and who He considered an abomination. I would have proudly sported a mean and hateful t-shirt to establish my place among the Lord's elect. Such an opportunity, thankfully, never arose (and if it had my parents would never have permitted such a gross violation of Matthew 7:12)

--It occurs to me that parents and teachers could use this T-shirt ruling as a great learning opportunity for their children and students. Being exposed to cruel and hateful messages is unfortunately unavoidable in today's world, and the sooner these kids can learn to deal with it in a peaceful, tolerant manner, the better off they will be.

What bothers me most about the court decision is the implication that schools and gays brought this upon themselves. Somehow, proclaiming your own identity, if it's your sexual orientation, is open to bigotry and hate. This is not about basic criticism, like what is said about those with differing political ideologies. That the court would support such bigotry, I find disturbing.

Hey, I know, since gays have obviously made the wrong lifestyle choice, why don't we offer a possible cure, instead? Let's enroll them in Professor Bailey's Human Sexuality course at Northwestern University.

"Now that there are no possible legal impediments to stop them, a Phelps protest will result in violence & some of the Phelps' are going to be the victims." - Garry

False premise. The fact that Mr. Snyder could not recover under a tort theory of intentional infliction of emotional distress does NOT mean that "there are no possible legal impediments" to Phelps' demonstrations.

As noted previously, "time, place and manner" restrictions, as long as they are reasonable and content-neutral, are likely to be upheld, and if Phelps' and his followers engage in disruptive or violent behavior, that would not be protected.

But also note that it has long been held that the government cannot stop you from speaking because of concerns that others will respond with violence. You arrest the people who throw the bricks, not the people at whom the bricks are thrown.

If you're going to allow a t-shirt that promotes gay rights, you're going to have to allow a t-shirt that says homosexual conduct is sinful. If you're going to allow t-shirts promoting affirmative action, you're going to have to allow t-shirts opposing it. If you're going to allow pro-Obama t-shirts, you're going to have to allow Obama Mickey Mouse ears t-shirts.

Wendy, since you're pushing the abortion point, first, what I've seen of protests is to encourage girls to not abort their children, second, whatever "malevolence" is directed at the girls (and men, or mothers, who often are pressuring the girls/women to have abortions) pales in comparison to the evil that occurs within the clinic.

Now, can we drop the point?

Also, Bailey and the adminstrators who support him should all be fired.

---"second, whatever "malevolence" is directed at the girls (and men, or mothers, who often are pressuring the girls/women to have abortions) pales in comparison to the evil that occurs within the clinic."

No MCN, we can't drop the point when you've gone off the deep end. Your OPINION of abortion does not exonerate the behavior of the protesters outside an abortion clinic, and you're sick in the head for thinking that it does.

I think it's pretty simple - public schools should not be promoting ideology. I personally strongly believe in equal rights for everyone - be it religion, sexuality, gender, race, etc. I also recognize others don't agree with me, and frankly, I think they're wrong, misguided, and bigoted. I'm also sure people on the other side of the debate think *I* am wrong and misguided, and maybe even bigoted against their right to be a bigot. This is the price we pay for living in a free society - people are going to disagree with me, and think I am an intolerant jerk. I simply don't think schools should be in the business of deciding who gets to express their opinion and who doesn't.

So it's one or the other: schools should allow both sides of a viewpoint to be expressed, or none. My one caveat is that these viewpoints have to be non-inciteful. There's a big difference between, say, "God hates fags" and "Don't be happy, be straight" or whatever it was. The first is pure incitement, and shouldn't be allowed in a school setting no matter what.

Again, do I agree? No, but like I said, it's a free country. As a liberal sort of person, I think it's my responsibility to tolerate even bigoted speech.

Wait, what is the problem with banning T-shirts? Is there something wrong with requiring kids to look presentable AND eliminating this controversy at the same time. I don't see how you can ever get around the points that MCN and Tim and I made, which amount to "if you allow one point of view, you have to allow the opposing point of view."

ZORN REPLY -- Schools do it all the time, though, is the point. Nearly every school will ban the wearing of the Confederate flag on a T-shirt, though by the rock-headed logic of equivalence is simply an "opposing point of view" from someone who wears a US flag on a T-shirt.

[[There are few more pathetic idiots than the idiots who shriek that it is intolerance not to embrace their brand of intolerance. Not even a nice try, "Nice Try."]]

Let's hope you aren't seeking tolerance, then. Or am I too late...?

We tolerate, as a society, by granting everyone the ability to spout whatever inanities they want. We *accept*, as a society, by not countering those inanities we believe to be truly inane.

There are some who believe that certain inanities are too inane to be spouted [because they certainly know better than everyone else], and they demand that - oh, gosh, someone with power and authority and who ever might THAT be - be charged with preventing certain inanities before they get spouted. ...Because we can trust with absolute certainty the outfit we get to accomplish that prevention.

I am not afraid of idiots being idiotic. Mostly because they are idiots, and their notions are idiotic. I am very very adept at using my own abilities to inform the idiots of what they are.

What I am afraid of is the concentration of power in a government - by taking that power, or by being handed that power by the wusses and weenies who wish for others to defend their defenseless selves - to control what people can and cannot say, can and cannot write, can and cannot believe, can and cannot be.

My maternal great-grandparents fled tsarist Russia for that very reason; they were Germans in a nation that had made being German a crime. They said, wrote and believed the wrong things.

It is the duty and obligation of free people in what would be a free society to tolerate idiots being idiotic by letting them BE idiotic; it is also their responsibility to counter the idiocy.

G--regJ: Your comment and tne problems raised by permitting children to display messages while in school is well taken. I have absolutely no problem with requiring a dress code in public schools. It would solve a lot of issues.

[[the Confederate flag on a T-shirt... is simply an "opposing point of view" from someone who wears a US flag on a T-shirt]]

Only if it was a US flag circa 1861. If you're going to whine pedantically, do it properly.

I find it perplexing that someone whose life and livelihood revolves around words is so frightened by them that he advocates the government having the authority to determine what people can say. I'm embarrassed for you, Z.

You are not a slouch with words. What is so scary about pinheads issuing pinheaded screed? Can you not rebutt it? Or do you just not wish to?

I've never seen you as inept or lazy ... but maybe you are. Naive, frequently; inept/lazy, no.

"Wait, what is the problem with banning T-shirts? Is there something wrong with requiring kids to look presentable AND eliminating this controversy at the same time."

Greg J

You bring up a good point. As does MCN about dress codes. School uniforms are the obvious answer, we do require students to wear dark pants or skirts and plain white polo shirts for grades K-8, we actually get about 60 to 70 percent compliance in the lower grades. But, our school board has balked at uniforms for high school students even though the administration pushes for it every year. It's very unpopular with students and parents, many feel high school students should be allowed to dress as they please, within limits. (Our school board members are elected, so are sensitive to public opinion.) Also, other public high schools don't wear uniforms, many think this will stigmatize our high school. Those of us who work in the high school don't think it will be effective because we question whether it would be enforced, our current dress code is rarely followed. (Please, if you have a rule for boys to wear their pants around their waists, why are 80% of these students walking around with their pants below their a.... well, you know what I mean.) One useful exercise from this debate, every year we have the students write a persuasive paper on the pros and cons of school uniforms.

"if you allow one point of view, you have to allow the opposing point of view."

Zorn's reply is right on point, here. Many opposing positions are inflammatory, racist, sexist, or state views that are not supported by our society, at least not at this time. This is school and we're dealing with minor children, we can place limits on certain positions and/or styles.

ZORN REPLY -- Schools do it all the time, though, is the point. Nearly every school will ban the wearing of the Confederate flag on a T-shirt, though by the rock-headed logic of equivalence is simply an "opposing point of view" from someone who wears a US flag on a T-shirt.

GREG J REPLY -- I agree that they do. The issue is whether they should or whether it's legally permitted. The court case that you cite above seems to indicate that it isn't legally permitted and I bet that the SC would affirm that decision.

MCN makes a great point about the Soviet flag and PRC flag vs. the Confederate flag, which raises exactly the kind of line-drawing problem that I mentioned in my comment. "Rock-headed logic of equivalence?" Sure, I'm with you; but let's be consistent about who we are calling rock-headed. It would have to include anyone wearing a T-shirt with a swastika or a Soviet hammer and sickle.

The real issue, in my mind, is whether we even want schools in the line-drawing business over free expression. No one has given me a good reason why a more sensible dress code doesn't solve this problem. It doesn't even have to go as far as uniforms. Further, if schools must teach tolerance (which is questionable when they seem to be struggling to teach math) then it should be even-handed, which requires teaching students to respect well-reasoned dissenting opinions and to socially ostracize those who are simply out to spread hate. I don't know how you can properly teach tolerance without explaining the virtues of free speech and why social ostracism and criticism are preferred over legal restrictions on speech in a free society.

Also, while we are on the topic of T-shirts promoting gay-bashing, what do you think about people who wear T-shirts with Che Guevara's image? All he did was set up a concentration camp in Cuba in which homosexuals were forced into hard labor, at best, and murdered, at worst. We can criticize Fred Phelps all day but he looks like a model of tolerance compared to Che.

You wrote "Zorn's reply is right on point, here. Many opposing positions are inflammatory, racist, sexist, or state views that are not supported by our society, at least not at this time. This is school and we're dealing with minor children, we can place limits on certain positions and/or styles."

I'm cool with all of that but I'm afraid that both you and Eric are missing the point about the line-drawing problem (see MCN's point above). If a school is going to allow "Day of Silence," I don't have a problem with students getting together to have their day where they explain their opposition, as long as it's done in a non-threatening and non-violent manner. The school opened the door to a debate and it should not be allowed to shut down the other side. What it should be allowed to do is regulate the tone of each side but, again, I question whether it's a good idea for public schools to be involved in this nonsense in the first place when they are having a hard enough time teaching basic science, for instance.

Whether a dress code will be enforced is a separate issue but the lack of will to follow-through is an indication that more significant disciplinary problems won't be addressed either. It's a variation of the old "broken windows" theory at play here.

ZORN REPLY -- The assumption here is that "tolerance" is somehow a controversial socio-political position, one on which society acknowledges that reasonable people can disagree.
And/or that slavery/ black-oppression which is symbolized by the confederate flag is simply another opinion on race relations.
Both of those positions I reject. I don't think that schools should say you have to APPROVE of homosexuality, but I think they should say, teach, promote the idea that homosexuals should not be mocked, ostracized, scorned or publicly criticized for their behavior any more than, say, a Jewish student or black student or Christian student should be so mocked, ostracized, scorned or publicly criticized.
This is promotion of common decency, minimal good manners and behavior. Those who consider this a controversial or political position kind of disgust me.

---Why shouldn't people be publicly criticized for their behavior? Kids wear shirts that do that all the time.

For example, it is orthodox Christian teaching that sex outside of marriage, whether heterosexual or homosexual in nature, is mortally sinful. Are you going to prevent a devout Christian from wearing a t-shirt stating that belief in so many words because someone finds it offensive?

What about a Che Guevara, Mao, or Lenin t-shirt? Three very, very bad characters. But a lot on the fashionable left had much favorable to say about them and the ideologies they espoused. Guitarist Tom Morello can be seen wearing a PLA hat. That Che shirt is still floating around. Are you going to ban those hats or shirts?

I think not. I'm with GregJ on this one.

ZORN REPLY -- At school? I would, absolutely. I don't think shirts criticizing the legal and or discreet behavior of others -- aside from perhaps jocular shirts mocking Packers fans and the like -- are appropriate in school. I would not want to allow a kid wearing a T-Shirt that read, "Christians, stop your silly superstitious prayers, God doesn't exist and Jesus is myth" any more than I'd want to let a kid wear a "Democrats are misguided and ill-informed" T shirt or a "Don't intermarry" T-shirt or... you get the idea.
Whether or not a kid finds ANYTHING legal sinful or personally objectionable is irrelevant to my notion of free speech in a school setting. Try thinking analogously. And getting your mind around the idea that tolerance is not approval. You may not approve of the beliefs of a Muslim, say, but accepting and tolerating his right to his beliefs is not merely the morally neutral flip side of insulting and belittling his faith.
The only way you conservatives can make this argument work is to wall off homosexuality as some icky "other" that somehow concerns you.

I am kind of out of it when it comes to what goes on in our high schools. I had not realized that students can wear T-Shirts. I suppose they can now wear jeans as well.

I agree with MCN that the schools need to go back to dress codes, for several reasons, one is that it would cut down on messaging via clothes, and another is, and this may sound old fashioned (like the Everly Brothers), but I believe that the better you dress the more serious you will take your work--whether it is out in the workforce or in school.

ZORN REPLY -- The assumption here is that "tolerance" is somehow a controversial socio-political position, one on which society acknowledges that reasonable people can disagree.

GREG J REPLY -- I don't think that anyone is saying that tolerance is a controversial socio-political position. What I am saying is that tolerance is a two-way street and if a school wants to open a dialogue about tolerance, it should welcome the view that tolerance doesn't necessarily mean acceptance. Therefore, I'm ok with a "Day of Silence" and with students wearing T-shirts with messages stating that homosexual acts are contrary to Christian teachings, as long as the tone is appropriate in both instances. Again, the school opened the dialogue ("tolerate homosexuals") and if the response is "ok but that doesn't mean we accept homosexual acts," then I don't see a problem. Keep in mind, I'm talking about what I think the standard should be. The 7th Circuit seems to be saying that freedom of speech is less restrictive than what you or I see as the ideal. I agree with you that common decency, good manners, and good behavior should be promoted.

Again, the preferred course of action would be that the school stays out of this entirely and require students to dress appropriately. Robert Pruter and MCN make very good points regarding dress codes.

“What I am saying is that tolerance is a two-way street and if a school wants to open a dialogue about tolerance, it should welcome the view that tolerance doesn't necessarily mean acceptance. Therefore, I'm ok with a "Day of Silence" and with students wearing T-shirts with messages stating that homosexual acts are contrary to Christian teachings, as long as the tone is appropriate in both instances.”

Tolerance doesn’t men acceptance, here. The point of the ‘Day of Silence’ was to silently protest the bullying of others, and that’s it. It was not meant to promote any particular rights or behaviors of others. Yet, you feel the answer is to allow students to be able to justify the harassment of others, because they believe in a religion that doesn’t recognize the right of homosexuals to exist, or they’re outright bigoted?

ZORN QUOTE -- “This is promotion of common decency, minimal good manners and behavior. Those who consider this a controversial or political position kind of disgust me.”

"Whether a dress code will be enforced is a separate issue but the lack of will to follow-through is an indication that more significant disciplinary problems won't be addressed either. It's a variation of the old "broken windows" theory at play here."

I'm in total agreement with this statement, something that frustrates the staff in my building to no end.

I appreciate your comments but let me clarify a few things to make sure we're on the same page. The legal standard articulated by the 7th Circuit may or may not be the legally correct answer (my guess is that it's correct though) but Eric, you, and I believe that it isn't the "best" answer, from a social utility perspective, because it allows speech that we don't like. If the decision is legally correct then my remedy (a stricter dress code) appears to be one way of arriving at a better social outcome that will hold up under legal scrutiny.

Now let's put the legal standard articulated by the 7th Cir. aside and imagine that we can create further restrictions on speech in school that would be upheld by the Supreme Court. Let's further stipulate that putting a school dress code in place isn't a solution we're considering. If our objective is to promote tolerance, I think we need to teach the difference between tolerance and acceptance, which, let's face it, can be a very fine line. In fact, it's arguable that by promoting a day of tolerance for homosexuals and not, for example, Christians or atheists or Asian-Americans, the school is showing some degree of favoritism toward homosexuals regardless of the actual message (again, I'm saying it's arguable, not that I agree). Further, it's possible, and even likely, that some members of the school staff will cross the line from promoting tolerance into promoting acceptance.

You asked a specific question, which was "Yet, you feel the answer is to allow students to be able to justify the harassment of others, because they believe in a religion that doesn’t recognize the right of homosexuals to exist, or they’re outright bigoted?" My answer is - no, I don't believe we should allow harassment of any type or statements that don't recognize the right of homosexuals to exist (as such statements seem threatening to me). What I would allow is messages that stand for the proposition, for example, that tolerance is not the same as acceptance and that homosexual acts are sinful or gay marriage should be illegal. (btw, I'm not aware of any mainstream religion that denies the right of homosexuals to exist but that's off-topic).

Therefore, the speech that I find acceptable is less expansive than the legal standard but more expansive than the speech that Eric and you find acceptable. The reason for my difference of opinion with Eric and you is that I think an academic discussion of tolerance of homosexuals ideally should allow a fair exploration of what is meant by "tolerance" versus "acceptance," as well as why homosexual behavior is not accepted by many people. I'm all for making sure that the tone is appropriate but I think if the school is interested in having an academic discussion, it has to make room for a thorough, critical examination of the topic, which includes different points of view. In this case, the T-shirt slogans aren't particularly sophisticated (which is also true for the "Day of Silence" T-shirts) but slogans frequently are not. However, they don't appear to be threatening or vulgar, so I think they should be allowed as they might further the academic discussion.

“If our objective is to promote tolerance, I think we need to teach the difference between tolerance and acceptance, which, let's face it, can be a very fine line. In fact, it's arguable that by promoting a day of tolerance for homosexuals and not, for example, Christians or atheists or Asian-Americans, the school is showing some degree of favoritism toward homosexuals regardless of the actual message (again, I'm saying it's arguable, not that I agree). Further, it's possible, and even likely, that some members of the school staff will cross the line from promoting tolerance into promoting acceptance.”

Why do you insist tolerance must be based on a specific related prejudice? My point is that any intolerance is wrong, and this is how we teach it. We encourage our students to be pro-active in supporting acceptance of all students, while dismissing bullying or harassing behaviors, no matter the source.

“The reason for my difference of opinion with Eric and you is that I think an academic discussion of tolerance of homosexuals ideally should allow a fair exploration of what is meant by "tolerance" versus "acceptance," as well as why homosexual behavior is not accepted by many people. I'm all for making sure that the tone is appropriate but I think if the school is interested in having an academic discussion, it has to make room for a thorough, critical examination of the topic, which includes different points of view.”

Again, I say this is not the objective we’re trying to achieve. This is high school, not college. These questions do not have a place where all are expected to be treated equally, no matter what their differences, and any discrimination cannot be tolerated. Please remember, all students are required by law to attend public school. We cannot allow for the abusive attitudes of those whom would object to any difference.

EZ: "The only way you conservatives can make this argument work is to wall off homosexuality as some icky "other" that somehow concerns you."

I don't have a clue as to what this means.

As GregJ points out, there is a thin line between tolerance and acceptance. I don't give much of a damn whether students are homosexual or not and am am four square in preventing any physical emotional or whatever abuse directed toward students because of their ethnic, sexual or whatever status.

On the other hand, if you're going to allow an "It's great to be gay" t-shirt, you'd better allow the type of t-shirt I suggested. If you're going to allow a PETA "Stop eating meat" shirt you'd better allow something to the contrary.

You are inevitably letting value judgments slip into your views of what speech should or should not be permitted. I prefer to short circuit the problem and not allow it on school grounds.

"The assumption here is that "tolerance" is somehow a controversial socio-political position, one on which society acknowledges that reasonable people can disagree."

Yes, despite what liberals might believe, their ideological positions do NOT come from God; they can be discussed and argued with in the public square -- although not necessarily on T-shirts in school. T-shirts that promote any ideological cause, right or left, pro-gay or anti-gay, pro-jihad or anti-jihad, pro-abortion or anti-abortion, should be prohibited in school.

I don't suggest that tolerance must be based on a specific prejudice. My comment is in response to the "Day of Silence," which was intended to promote tolerance of a specific group. I would prefer that tolerance was discussed in more general terms. I agree with you that it's proper to convey the message that intolerance is wrong. I'm less agreeable that schools should be promoting acceptance because that really opens the door to controversy. I'm not suggesting that starting controversy on social issues is necessarily bad but it could be quite disruptive and interfere with the academic mission of the school.

I completely disagree with your last paragraph. There are so many problems with that approach that I don't know where to begin. Of course we don't want to allow harassment, abuse, or deny equal treatment. However, not allowing questions or criticial thinking on a topic that the school itself brought up for discussion is completely inconsistent with academic freedom and encouraging students to think for themselves. What you suggest is preaching, not teaching. You are actually hurting the message that you are trying to promote by not allowing a free discussion. Kids aren't dumb, they know when something is being forced on them, and there is a natural tendency to rebel against messages that require obedience without allowing even thoughtful challenges. What do you do when a teacher crosses the line from promoting tolerance of homosexuality to promoting acceptance? Are you seriously suggesting that we shouldn't allow criticism of that point of view? I'm guessing that the majority of kids whom you teach are Christians and have been taught (or should be) outside of school that homosexual acts are sinful but that they should hate the sin and love the sinner. How do you square what they have learned at church or at home with the message of tolerance that you are trying to promote? Don't you see how there is a lot of room for confusion and that encouraging a frank and free discussion would be in everyone's best interest? When you don't allow your message to be questioned and explored, it gives the appearance that you are being less than honest or that you have something to hide. The message of tolerance is a good one and you do it a disservice when you don't welcome a civil discussion that includes different points of view.

First, let us be clear, the 'Day of Silence' did not promote homosexual acceptance. It promoted the opposition of bullying and harassment of others. Let's discuss...

“However, not allowing questions or critical thinking on a topic that the school itself brought up for discussion is completely inconsistent with academic freedom and encouraging students to think for themselves. What you suggest is preaching, not teaching. You are actually hurting the message that you are trying to promote by not allowing a free discussion.”

When addressing harassment and bullying behaviors, of course we list the reasons some are singled out for abuse, we don’t focus on a single cause, such as aversion to homosexuality. But, the point of instruction is to acknowledge and reduce the behavior, itself. What is harassment/bullying? It’s defined as ‘the negative, intimidating actions intended to harm or compromise the physical, psychological, or emotional safety of a targeted person or persons.’ Are YOU suggesting the mere existence of homosexuals is reason to excuse this behavior?

“Kids aren't dumb, they know when something is being forced on them, and there is a natural tendency to rebel against messages that require obedience without allowing even thoughtful challenges.”

No, they’re not, they can perfectly understand a negative course of behavior isn’t appropriate, no matter what the reason. To suggest that any negative or harmful behaviors/positions can be justified by “thoughtful challenges” wipes out the point we’re trying to make. Our answer is NO! It’s never correct to bully or harass anyone, for any reason.

“I'm guessing that the majority of kids whom you teach are Christians and have been taught (or should be) outside of school that homosexual acts are sinful but that they should hate the sin and love the sinner. How do you square what they have learned at church or at home with the message of tolerance that you are trying to promote?”

You don’t, instead you explain religious beliefs are not part of the educational environment, neither are they part of the business environment, which I hope you’ll agree with. No one suggests any student should change their beliefs or be forced to approve of traits they find offensive in others. We just ask they not use their views as an excuse to indulge in negative behavior to individuals, targeted groups, or the rest of the student population.

“When you don't allow your message to be questioned and explored, it gives the appearance that you are being less than honest or that you have something to hide.”

The message, here, is bullying and harassment of others is wrong. And it is never justified by an opposing point of view. I’m surprised by your vehemence in protecting those whom cannot tolerate others. I would not defend those who attack Catholics for their beliefs.

You wrote "First, let us be clear, the 'Day of Silence' did not promote homosexual acceptance. It promoted the opposition of bullying and harassment of others."

It was intended to promote tolerance of homosexuals and not a broad category of "others." It opened up the door to a discussion of tolerance vs. acceptance.

You wrote "Are YOU suggesting the mere existence of homosexuals is reason to excuse this behavior?"

There is no excuse for threats or harassment and such behavior should be punished. One's existence is never grounds for that type of behavior and kids should be taught that if they don't like someone (for any reason) they should, at the very least, leave that person alone. The definition - "‘the negative, intimidating actions intended to harm or compromise the physical, psychological, or emotional safety of a targeted person or persons" is very, very broad and vague, and may go beyond what reasonable people find threatening or intimidating. For instance, it could include shunning (which is poor manners but should not be punished) and we could play games with the term "emotional safety" or "targeted person" all day. Nothing that I wrote condoned threats, aggressive behavior, bullying, etc.

You wrote "(kids) can perfectly understand a negative course of behavior isn’t appropriate, no matter what the reason, ... It’s never correct to bully or harass anyone, for any reason"

I'm not sure what you mean by "negative course of behavior" but I agree that it's never correct to harass or bully anyone for any reason.

You wrote "We just ask they not use their views as an excuse to indulge in negative behavior to individuals, targeted groups, or the rest of the student population."

If that's all you are asking, I quite agree subject to an understanding of what constitutes "negative behavior." I would only punish active behavior (e.g., a threat) and not most passive behavior (e.g., not sitting with someone at lunch).

You wrote "I’m surprised by your vehemence in protecting those whom cannot tolerate others."

With respect, you're making that up. Read carefully what I wrote above. I'm arguing that the legal standard articulated by the 7th Circuit is probably legally correct, which means that certain negative speech is probably legally protected. My argument is that it would be ideal to allow less negative speech in the classroom. My solution is to disallow T-shirts, etc. with any slogans. We're pretty much on the same side here.

"One more point, why should the majority of Christians be taught that homosexual acts are sinful? Many Christian subsects no longer hold these views."

I'm not up on modern Protestant religious philosophy but I'm pretty sure that the majority of Christian subsects believe that homosexual acts are sinful. This is certainly true in the Catholic and Eastern Orthodox religions, which have very large followings in this area. Most mainstream Protestant churches have similar views although I'm sure you could point to a few that dissent. Anyway, if it is church teaching that homosexual acts are sinful then that teaching should be communicated to the followers. One goes to school to learn academics and one goes to church to learn religious teachings/values. For a church to ignore its own teachings on sin is equivalent to a school teaching U.S. history without mentioning slavery, or me instructing a client about a tax position and failing to mention a controversial federal court decision that is not in the client's favor . In other words, you do your students/followers/clients a disservice by ignoring controversial topics.

Ok, let’s go again, though I do believe we both agree that bullying and harassment should be discouraged and punished.

“It was intended to promote tolerance of homosexuals and not a broad category of "others."

If so, then tell me, why would it be necessary to promote the tolerance of homosexuals? I guess the reason would be the verbal and physical abuse many of them suffer at the hands of the intolerant? As you say, we can play word games all day if you like. (BTW - We used the ‘Moment of Silence’ to protest any and all forms of bullying at our school.)

By ‘negative course of behavior’ I was referring to what you would probably call passive forms of bullying that progress to more hostile forms, as follows:
Using words in a derogatory manner, gay jokes, stereotypical references.
Anti-gay, homophobic remarks, slogans, graffiti.
Cyber-bullying, verbal/physical attacks against the individual, sometimes their friends and family.
Our stance is that any bullying is wrong and must be discouraged. It’s also law, now.

“I'm arguing that the legal standard articulated by the 7th Circuit is probably legally correct, which means that certain negative speech is probably legally protected.”

I don’t agree and would like to see this come before the Supreme Ct. I also further believe school districts should be allowed to decide what students can or cannot wear, if this means banning all slogans, so be it.

“In other words, you do your students/followers/clients a disservice by ignoring controversial topics.”

I disagree again, schools cannot support political, religious, or certain social positions. Asking us to give a forum to students to express why homosexuality is wrong and these individuals should be damned isn’t any different than allowing a course promoting creationism against evolution. It crosses our forbidden line by allowing religious beliefs into the school. Why can you not see this?

If students want to indulge in controversial discussion, they can enroll at Northwestern after high school.

There is nothing wrong with promoting tolerance of homosexuals. I think it's preferable to teach tolerance without singling out certain groups because some could get the idea that there is an element of favoritism going on. But, again, I have no problem with the tolerance message.

I don't think you understand what "passive" means. Inappropriate jokes, slurs, etc. are not allowed in the workplace and should not be allowed in the classroom. "Passive behavior" does not harass anyone as it includes, for example, the act of avoiding social contact (and not, for instance, on a school project or work assignment) with people who you don't like for any reason.

Many conservatives would agree with you that the 7th Circuit did not decide the case correctly. By all means, let the Supreme Court take it up.

Schools can not support religious positions but they also can not silence students who express religious points of view in a proper manner because that would be an infringement of the students' freedom of speech and religion. It's true that schools can not promote religious beliefs but student comments informed by religious beliefs are certainly allowed in schools. If you are promoting tolerance of homosexuals and a student responds "where do we draw the line between tolerance and acceptance? I certainly don't accept homosexuality even if I have to, or choose to, tolerate it" - that is a point of view well within the bounds of appropriate discussion. I understand that public schools are allowed latitude to promote order but they can not completely stifle academic freedom. If they open the door to a discussion, they can not shut down civil dissent. Just about everyone from conservatives, to libertarians, to liberals who understand the First Amendment, to the ACLU agrees on this point. It's not only the socially desirable answer but it's also the law, and there is no legal or moral reason for students to wait until college to engage in a civil debate. The only thing that the 7th Circuit decision changes is that it draws the line further then you (or I) would want it in favor of the First Amendment. I'm pleased that you agree that schools should be able to decide what students can and can not wear as that is the only resolution that makes sense to me.

"...but they also can not silence students who express religious points of view in a proper manner because that would be an infringement of the students' freedom of speech and religion."

Sorry, but yes, we can, if that point of view is harmful or singles out select others for discrimination. Any language meant to diminish or persecute another cannot be allowed. If you cannot accept homosexuality based on religious belief, fine, you don’t have to. This does not mean you have the right to deride homosexuals because of your belief and we do have the right to say you can’t. Religious expression that is not critical of others or disruptive to the educational environment is acceptable. We have several young Muslim ladies who wear the hijab (head covering), one wears a full burqa with only her eyes showing. This harms none, while a t-shirt approving of the stoning of women would not be appropriate, I’m sure you’ll agree.

I also don’t agree with you on ’civil dissent’. I don’t believe these rights apply to minors in a public school setting. Besides this nonsense put out by the 7th Circuit, above, provide me with a case that allowed civil dissent in a public school setting that involved the degradation of other students. This does not include examples before the Civil Rights era and desegregation.

Your argument has become unhinged because you appear to misunderstand the line of cases cited by the 7th Circuit above. "Language meant to diminish or persecute" is not the legal standard discussed in any cases. It's preposterous to suggest that you have the right to say that any negative comments about any group are not permitted in the classroom although, admittedly, you can control the tone and the type of language used. If you read the material above and actually look at a few of the cases, you'll find decisions such as Tinker v. Des Moines where students were permitted to show civil dissent.

Yes, we should allow burqas (as disgusting as they are) but we also have to allow students to criticize the practice of wearing burqas when the topic is discussed. T-shirts approving the stoning of women aren't appropriate as they are an incitement to violence.

To maintain order and discipline, students are required to leave some of their constitutional rights at the schoolhouse door but not all of them. Critical thinking is not promoted by forcing an agenda on students without allowing them to even ask why. Freedom of speech can be curtailed in school but can not be completely shut down. Even the limited freedom of speech, which is permitted in schools may offend some but that's the price we pay for that freedom. Even more frightening than harassment and bullying is the prospect of forcing our children to keep their mouths shut when they have respectful questions, concerns, and comments about how a government agenda promoted by the schools potentially conflicts with values taught at home and church. You can and should impose discipline and you can and should discourage bullying; you can not act like thought police and silence civil dissent when you open the door to a discussion of a topic.

It seems we are at an impasse. While you seem to believe others have the right to remark on the disgusting habits and apparel of those they disapprove of, citing religion as just cause to make these remarks, I do not. But, I will spare you the burden of any further unhinged arguments, I'm done here.

As you well know, I respect your views and I think your heart is always in the right place. My problem with your approach to the argument, in this case, was that you were making claims about what teachers can legally do to limit speech that didn't match up with case law in the area. The First Amendment produces a lot of very difficult issues and courts are always struggling with the line. Therefore, it's unsurprising that the two of us would draw the line at different places even though we're in basic agreement about the desirability of promoting tolerance and maintaining discipline.

About "Change of Subject."

"Change of Subject" by Chicago Tribune op-ed columnist Eric Zorn contains observations, reports, tips, referrals and tirades, though not necessarily in that order. Links will tend to expire, so seize the day. For an archive of Zorn's latest Tribune columns click here. An explanation of the title of this blog is here. If you have other questions, suggestions or comments, send e-mail to ericzorn at gmail.com.
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Contributing editor Jessica Reynolds is a 2012 graduate of Loyola University Chicago and is the coordinator of the Tribune's editorial board. She can be reached at jreynolds at tribune.com.